U.S. District Judge Arthur Schwab’s decision is the first in favor of a religious non-profit since the HHS final rule of June 28.

BY JOAN FRAWLEY DESMOND

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Posted 11/25/13 at 3:08 AM

PITTSBURGH, Pa. — A federal court handed the Pennsylvania dioceses of Pittsburgh and Erie an important legal victory on Nov. 21, when U.S. District Judge Arthur Schwab ruled that their legal challenge to the Health and Human Services mandate was likely to succeed on the merits, and granted their petition for a temporary injunction.

In testimony before the court, Bishop David Zubik of Pittsburgh and Bishop Lawrence Persico of Erie argued that the contraception mandate violated the free exercise of Catholic non-profits guaranteed under the First Amendment and the Religious Freedom Restoration Act.

Cardinal Timothy Dolan of New York, the president of the U.S. Conference of Catholic Bishops until his three-year term ended earlier this month, provided videotaped testimony that echoed the bishops’ allegation that the federal law wrongly distinguished between religious worship and service to the needy, and thus imposed an excessive burden on non-exempted Catholic agencies. Those charities are required to comply with a government “accommodation” designed to provide co-pay free contraception, sterilization and abortion-inducing drugs to employees through a third-party entity.

“The Court concludes that the ‘accommodation,’ in effect, causes these Plaintiffs to comply with the contraceptive mandate which violates their sincerely-held religious beliefs — that ‘the sanctity of human life which begins at conception,’ and ‘facilitation of evil is the same as proliferation of evil’ — and thus, places a substantial burden on Plaintiffs’ ability to exercise their religion,” Judge Schwab noted in his ruling.

The ruling stated that the administration had failed to meet criteria outlined in the Religious Freedom Restoration Act, which asks the government to identify a compelling state interest to justify laws that constrain the free exercise of religion, and, further, to show that the least burdensome approach has been adopted.

Judge Schwab concluded that the administration “has, thus far, in this litigation, failed to show these regulations meet a compelling governmental interest and are sufficiently narrowly-tailored to meet those interests, and/or to demonstrate that the ‘accommodation’ is the least restrictive means to meet those stated interests.”

“Based on the foregoing analysis, the Court finds that Plaintiffs are likely to succeed on the merits, and thus, they have met the first element of the preliminary injunction test,” the ruling concluded.

First Ruling in Favor of Catholic Non-Profit

It was the first decision in favor of a religious non-profit under the HHS “final rule” of June 28, which provided an “accommodation” that the U.S. bishops have rejected as unacceptable. The two dioceses were represented pro bono by Jones Day, a top U.S. law firm.

A total of 40 non-profits, including EWTN, have filed lawsuits against HHS Secretary Kathleen Sebelius over the HHS mandate. The Register is a service of EWTN.

“When Judge Schwab ruled in favor of the Dioceses of Pittsburg and Erie, he said that the HHS mandate — even with the accommodation — greatly burdens religious liberty and does indeed reduce religious freedom to freedom of worship,” said Archbishop William of Baltimore, the U.S. bishops’ point man on religious freedom, in an interview with the Register.

The government is expected to appeal the decision to the 3rd Circuit Court of Appeals. The outcome remains uncertain; the appellate court ruled against a for-profit HHS plaintiff in a previous case.

“This was a positive decision,” said Archbishop Lori, “but it is not a good idea to count your chickens before the eggs hatch. Still, these days, things are looking good in the incubator.”

Religious employers that oppose the contraception mandate face a formal January 2014 deadline to comply with the federal law, though the actual deadline depends on when a religious employer updates its health insurance.

Meanwhile, legal challenges filed by for-profit employers have resulted in split decisions at the appellate level, and the U.S. Supreme Court is expected to decide whether it will hear an appeal to one or more such cases by Nov. 26.

Bishop Persico of Erie told the Register that diocesan-affiliated agencies faced the Jan. 1 deadline to comply with the federal law, and thus he was both relieved and heartened by Judge Schwab’s decision.

“What impressed me was that the judge gave us a fair hearing. He sees that it is a religious liberty issue, a conscience issue for us. Once we sign the document [complying with the accommodation], we trigger the facilitation of an immoral act,” said Bishop Persico.

Church’s Mission: Worship and Service

The diocese’s legal challenge against the HHS mandate has offered Bishop Persico an opportunity to speak out on the issue of religious freedom in a variety of public forums.

“This is about more than compliance with the contraception mandate, this is about an American value — religious liberty,” said the bishop, who suggested that Catholics could only heed Pope Francis’ call to serve the poor and the needy if this central freedom remained secure.

Judge Schwab’s decision noted that the “Diocese of Erie, through its supported social services organizations, provides aid to approximately 56,000 people per year, including many who would otherwise not receive necessary food, shelter, and other services.”

But those services could be endangered by the penalties that would be imposed on religious employers that refused to comply with the federal law. “[F]ines related to the contraceptive mandate will compel Plaintiff nonprofit, religious affiliated/related organizations to limit services or close,” said the decision. It also cited Bishop Zubik’s testimony challenging the government’s effort to sever religious worship from good works.

Bishop Zubik argued that the “purpose of faith is not simply what we do in our churches on the weekend, but what we do at our work places and especially how we have the obligation to be reaching out to people who are in need. So that’s an absolute essential to our faith and there is no split between the two.”

Religious Freedom Bolstered

The decision stated that the government had failed to demonstrate that such burdens on the free exercise of religion were justified.

In papers filed with the court, the administration argued that the HHS mandate was needed for the "the promotion of public health" and for the purpose of "assuring that women have equal access to health care services." However, Judge Schwab concluded that these goals were too broad, and thus failed to meet the standard required by RFRA.

Further, he used strong language to critique the Obama administration’s effort to declare churches “exempt” from the federal law, while social agencies were required to comply with the accommodation.

“If the Court were to conclude that the Government’s stated interests were sufficiently ‘compelling’ to outweigh the legitimate claims raised by the nonprofit, religious affiliated/related Plaintiffs, the net effect (as noted above) would be to allow the Government to cleave the Catholic Church into two parts: worship, and service and ‘good works,’ thereby entangling the Government in deciding what comprises ‘religion,’” stated the ruling.

“Accordingly, for purposes of reaching a decision on Plaintiffs’ Motions for Expedited Preliminary Injunction, the Court refuses to conclude that the Government has compelling interests which overbalance the legitimate claims to the free exercise of religion raised by the nonprofit, religious affiliated/related Plaintiffs.”

Matt Bowman, legal counsel for the Alliance Defending Freedom, a public interest group representing a number of HHS plaintiffs, said Judge Schwab’s ruling affirmed key constitutional principles that bolstered religious freedom.

“This ruling is important because it shows that the federal government is not allowed to compromise the conscience of religious organizations,” Bowman told the Register.

“The bureaucrats implementing Obamacare have no business deciding what faith means and how it should be exercised by religious groups,” he said. “That is what the president tried to do in his alleged ‘accommodation’ regulation.”